Dimmi v RestaurantDiary.com [2018] NSWSC 846

Supreme Court New South Wales

Medium Neutral Citation: Dimmi v RestaurantDiary.com [2018] NSWSC 846 Hearing dates: 21/05/2018, 22/05/2018, 23/05/2018, 25/05/2018 Date of orders: 07 June 2018 Decision date: 07 June 2018 Jurisdiction: Equity - Commercial List Before: McDougall J Decision: Declare termination of right of exclusivity invalid; grant consequential injunctive relief. Catchwords: CONTRACT – whether purported termination of exclusivity provisions valid – power to terminate enlivened if Dimmi missed agreed KPI targets for four consecutive quarters – whether Dimmi met the Revenue KPI Target for September 2015 quarter –whether cost of Dimmi Rewards should be offset against revenue figures or treated as a cost of sales – KPI targets agreed by reference to the latter approach – performance should be assessed on the same accounting basis as targets were set – subsequent accounting advice that this was erroneous does not displace this conclusion – power to terminate not enlivened.

CONTRACT – conventional estoppel – whether parties adopted a common assumption that revenue was to be calculated by treating Dimmi Rewards as a cost of sales – whether Dimmi would have attempted to act differently had it known the assumption to be untrue – whether loss of this opportunity would constitute detriment – unnecessary to decide. Cases Cited: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 MCA International BV v Northern Star Holdings Ltd (1991) 4 ACSR 719 Miller Heiman Pty Ltd v Sales Principles Pty Ltd (2017) 94 NSWLR 500 Queensland Power Co Ltd v Downer EDI Mining Pty Ltd [2010] 1 Qd R 180 Category: Principal judgment Parties: Dimmi Pty Ltd (Plaintiff) RestaurantDiary.com Limited (Defendant) Representation: Counsel: MS Henry SC / BK Lim (Plaintiff) JAC Potts SC / LE Hulmes (Defendant)